Wednesday, February 24, 2010

The Mount Vernon Statement

By Mike Dorf

My latest FindLaw column explains how nothing in constitutional law is every really, finally settled. It's always open to being disrupted. Tomorrow I'll add some further illustrations. Today, I'll elaborate on an oblique reference in the column to a "recent small-government manifesto." Those who follow the link will find that it points to something called The Mount Vernon Statement ("MVS"). The MVS was unveiled last week by a small collection of somewhat prominent (albeit old) conservatives. It was meant to pay homage to the late William F. Buckley's Sharon Statement of fifty years earlier. Herewith a few observations about the MVS:

1) Like the original Buckley manifesto, the MVS is highly libertarian. The Constitution to which its authors commit themselves is not the current version, which includes an assortment of amendments moving the country in a more egalitarian direction (not the least of which are the Reconstruction Amendments, including the Fourteenth Amendment's equal protection clause), but the original document, with its express, if veiled, protection for slavery. And even then, the MountVernonites have erased the egalitarian ideals (however conflicted) of that era. Although the MVS repeatedly cites the Declaration of Independence as a source of guidance, it omits any hint of the most famous line: "All men are created equal."

2) The MVS presages or reflects a re-opening of the divide between economic libertarians and social conservatives. In a few places, it throws a sop to social conservatives. For example, it states that "A Constitutional conservatism . . . reminds economic conservatives that morality is essential to limited government" and "informs conservatism’s firm defense of family, neighborhood, community, and faith." Yet the language is much more strongly libertarian and more fundamentally, the MVS makes no serious effort to explain how modern social conservatism can be traced to the Founding. The closest it comes is in its invocation of natural law and the Divine origin of rights that it loosely links to the Declaration. But that language is at best prefatory and its author, Thomas Jefferson, was a Deist and a separationist whose views most social conservatives think were out of step with what they regard as the predominant Theism of the Founding Era (as nicely described in a recent NY Times Magazine article). Overall, the economic libertarian perspective dominates the social conservative perspective here.

3) The MVS is curiously meek on foreign affairs. Here is what Buckley's Sharon Statement said about national security in 1960:

THAT we will be free only so long as the national sovereignty of the United States is secure; that history shows periods of freedom are rare, and can exist only when free citizens concertedly defend their rights against all enemies…

THAT the forces of international Communism are, at present, the greatest single threat to these liberties;

THAT the United States should stress victory over, rather than coexistence with this menace . . . .

By contrast, the MVS contains only two references to foreign policy. It says that the signatories' vision "supports America’s national interest in advancing freedom and opposing tyranny in the world and prudently considers what we can and should do to that end." It's hard to think of anyone in the gigantic political space that includes both Dennis Kucinich and Dick Cheney who would disagree with that statement. The MVS also professes "that energetic but responsible government is the key to America’s safety and leadership role in the world." Here too, do any liberals disagree?

The essential emptiness of the MVS's professions regarding foreign policy bespeaks either internal division or exhaustion. I'm betting on the latter. While Republican politicians will continue to score some political points by portraying Democrats as soft on terror, given that Obama's foreign policy (including his military budget) exhibits far more continuity than discontinuity with that of Bush, and given that there is no remaining capacity for further military commitments, even if there were the will for them, the MVS's foreign-policy meekness is at bottom a nod to grim reality. Looking at the glass as 5% full rather than 95% empty, I'll celebrate even this partial return to reality-based thinking by the right.

Turning back to domestic policy, it is notable just how tired-sounding and unoriginal are the ideas in the MVS--and not because they are somehow timeless truths. Whatever recent resurgence of support the last few months have seen for politicians on the right cannot plausibly be explained by any sort of policy creativity. Rather, of late the right has simply been doing a better (if cynical) job of capitalizing on populist anger than has the left. Progressives are currently losing a PR battle, not a war of ideas.

9 comments:

Regarding your Findlaw piece, it’s interesting to compare Jefferson and Jackson in the context of nullification. While both favored some form of departmentalism in constitutional interpretation as a way to keep the federal government small (see Jackson’s battle to kill the Second Bank), they split on the idea of nullification.

It makes me think that in a lot of ways, Jackson had a firmer grasp** of what was requisite for a functioning government. Without federal supremacy, in core ways you’re simply looking at the Articles of Confederation again.

** And I can’t figure out how on earth Jefferson’s generational re-set would have worked.

I think one of the issues that many have with continuing down the path of the militia argument is the fact that the government federalized the militia into the National Guard. Before, the right to own a firearm was that of an individual, so that if ever needed to be called into service of the militia they would be prepared to a certain extent, in this case already armed. To argue that it is a militia right has some negative connotations to a common sense fella ( which I try and think of myself as).

If we approach the right to bear arms from the mindset that an individual is still allowed to own one only for the service in a militia, we would be defending the arming of individuals with AT-4's, M249's and other tools of rocket propelled and belt fed greatness. Identifying that this idea would put an anti-tank rocket (AT-4) in my local gun store I do not identify with it. Instead I identify with the clear understanding of what constituted the militia and the understanding of that at the time of writing. Individuals comprised the militia. Civilians, not bound through military contract to a National Guard or Active Military, were the people being spoken about. These people would be the normal folk, the working people, who if called upon due to great strife would answer the call of duty to protect their state (as in country instead of the often misused term nation).

Just as one would argue that the constitution is interpreted in different ways, it is important to understand that the fundamentals are what are important. I do not propose that we stay static and exist within a never changing body of law. One must of course understand the contemporary issues and utilize the law to confront them in the best way possible. (After all I do not think the internet and its complexities and possible abuses were thought of during drafting!) However, we were created and left with a set of guidelines; these guidelines should be stayed within and not completely discarded. After all it was the experience of oppression and non-representative failing governments which paved the way for guidelines.

To state that the 2nd Amendment granted the right to bear arms to the militia is to say that it belonged to the individual. It did not intend for the government to grant themselves the right to force the individual to join its very forces to enjoy this right, for in the minds of many founding fathers it was the government itself that the militia may be needed against. In understanding this logic, the base rule or guideline set down by the 2nd Amendment was the right for individuals to bear arms, so that they could better ensure that they could bear their other individual freedoms identified in the Bill of Rights.

One of the largely unnoticed aspects of the Tea Party movement is its relative indifference to foreign affairs and potentially even isolationist outlook. I don't think this is exhaustion but a more or less conscious choice. Indeed, even social issues are largely secondary to the movement: I assume that Scott Brown (e.g.) is anti-abortion and anti-gay marriage but I honestly don't remember hearing about it. The question is whether this will make the movement weaker or stronger. I think there is a very good chance that, by making the newer generation of conservatives less anathema to immigrants and younger voters, it could make it rather a good bit stronger